J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

ANTHONY DAVID STEWART :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1361 MDA 2020

Appeal from the Order Entered September 21, 2020

In the Court of Common Pleas of Lebanon County Criminal Division at

No(s): CP

- 38

- CR

- 0000945

- 2019

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED : NOVEMBER 19, 2021

The Commonwealth of Pennsylvania appeals from the trial court ’ s Order

granting, in part, the Motion to Quash Information filed by the Appellee

,

Anthony David Stewart ( “ Stewart ” ) , and directing Stewart to file a Motion to

withdraw his guilty plea, or, in the alternative, allowing Stewart to be

sentenced for the charges of Driving Under the Influence of Alcohol (“DUI”)

—

Highest Rate, and DUI

— General Impairment as first offenses

. 1

, 2 We affirm.

In its December 23, 2020, Opinion, the trial court summarized the

history underlying the instant appeal as follows:

_________________ __________ ______ ____ _______

1 See 75 Pa.C.S.A. § 3802 (a)(1) and (c).

2 The Commonwealth has certified that the trial court ’ s Order will terminate

or substantially handicap its prosecution, in accordance with Pa.R.A.P. 311(d).J

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- On March 26, 2013, [Stewart] was charged with [DUI ]

— Highest Rate ( [misdemeanor (“M”)] ), DUI []

— General Impairment

(M), and related Summary Offenses. On October 2, 2013,

[Stewart] was accepted into the Accelerated Rehabilitative

Disposition [( [ “ARD”)] Program of Lebanon County on those

charges. On March 13, 2015, [Stewart] completed the ARD

Program.

On A pril 18, 2019, [Stewart] was charged with DUI []

— Highest Rate, Second Offense ( [first

- degree misdemeanor] )[;]

DUI []

— General Impairment, Second Offense (M) [,] and related

Summary Offenses. ... [On October 8, 2019, Stewart entered a

negotiated guilty plea to the DUI offense, each as a second

offense, in exchange for a sentence of 90 days in jail, and

compliance with a drug and alcohol evaluation.] On May 20, 2020,

the Superior Court of Pennsylvania issued a decision which held

that a prior acceptance of ARD, absent proof beyond a reasonable

doubt [that] a defendant committed the prior offense, cannot be

counted as a prior offense for DUI sentencing purposes. [ See

Commonwealth v. Chichkin , 232 A.3d 959 (Pa. Super. 2020).]

Trial Court Opinion, 12/23/20, at 1

- 2 (footnotes omitted).

Following th is Court ’ s decision in Chichkin , Stewart filed a Motion to

Quash the DUI charges graded as second offenses. 3 After the filing of briefs

and oral argument, the trial court entered an Order directing Stewart to file a

motion to withdraw his guilty plea within 14 days. Trial Court Order, 9/21/20,

at 1. The trial court further directed that

, “ [i] f [Stewart ] fails to do so, he

shall appear for sentencing ..., consistent with the [d]ecision in this case that

the ARD does not constitute a first conviction and that the mandatory

minimums would be amended. ” Id. at 1

- 2

.

_________________ __________ ______ ____ _______

3 Se ction 3804 of the Motor Vehicle Code sets forth mandatory minimum

sentences for first, second, and subsequent DUI offenses. See 75 Pa.C.S.A.

§ 38 04.J

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-

On September 23, 2020, the Commonwealth filed a Motion to

Modify/Reconsider the trial court’s September 21, 2020, Order. On

September 24, 2020, the trial court declined to sign the Commonwealth’s

proposed O rder. 4 On October 8, 2020, as Stewart had not filed a motion to

withdraw his plea, the trial court filed an Order scheduling Stewart’s

sentencing hearing for October 28, 2020. Trial Court Ord er, 10/8/20. On

October 21, 2020, the Commonwealth filed the instant timely Notice of A ppeal,

followed by a court

- ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

The Commonwealth presents the following claim for our review:

Did the trial court err in directing that [Stewart], who was awaiting

sentenc[ing] af ter entering a negotiated guilty plea to a second

offense DUI, appear for sentencing as a first

- time DUI offender

with automatic amendment of his mandatory minimums on the

basis of the Chichkin decision, when that Order deprived the

Commonwealth

— in contrad iction to the language and intent of

Chichkin

— of the opportunity to offer proof beyond a reasonable

doubt before a trier of fact that [Stewart] had committed a

previous DUI?

Commonwealth ’ s Brief at 6.

The Commonwealth claims that the trial court imprope rly granted

Stewart ’ s Motion to Quash, and further erred by directing Stewart to appear

for sentencing as a first

- time DUI offender. Id. at 22. According to the

_________________ __________ ______ ____ _______

4 The word “ unsigned ” is hand written across the proposed amended

sentencing order, along with a stamp indicating that the parties were notified

of the trial court ’ s action on September 24, 2020.J

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- 4

-

Commonwealth, the trial court misinterpreted Chichkin as precluding the

Commonwealth from pro ving that Stewart had committed the prior DUI

offense underlying his ARD acceptance. Id. at 23

- 24. The Commonwealth

argues that “ the trial court deprived the Commonwealth of the opportunity to

provide the proof specifically permitted by Chichkin

. ” Id. at 24. The

Commonwealth argues that the trial court should have required Stewart to

either accept the terms of the negotiated plea, or proceed to trial, during which

the Commonwealth would prove the prior DUI offense. Id. Further, the

Commonwealth asserts that the trial court “rewarded” Stewart by not

requiring him to withdraw his plea. Id.

The Commonwealth claims that t he trial court erred in its interpretation

of Chichkin and its progeny. Id. at 25. The Commonwealth would distinguish

Chichkin and Commonwealth v. Roche

, 5 because the defendants in those

cases already had been sentenced. Commonwealth’s Brief at 26. According

to the Commonwealth, “ [t]he procedural posture of the instant case is

critically different[,] ” as Stewart was awaiting sentencing

. Id. at 27. T he

Commonwealth further points out that Ste wart had entered a negotiated guilty

plea to second

- offense DUI charges. Id. at 28

- 29. The Commonwealth

_________________ __________ ______ ____ _______

5 This Court consolidated the appeal of Lisa Roche ( “ Roche ” ),

Commonwealth v. Roche , 3475 EDA 2018, with the appeal of Igor Chichkin,

Commonwealth v. Chichkin , 3473 EDA 2018, for disposition

.J

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-

argues that, by pleading guilty to second

- offense DUI charges, Stewart

c onceded the prior DUI offense s. Id. at 30.

The Commonwealth further disput es the trial court ’ s interpretation of

Chichkin as holding that an offense for which someone has accepted ARD

cannot be considered a “ first offense ” under any circumstances. Id

. In

support, t he Commonwealth relies upon the following statement in Chichkin :

Accordingly, if the Commonwealth seeks to enhance a defendant’s

DUI sentenced based upon that defendant’s prior acceptance of

ARD, it must prove, beyond a reasonable doubt, that the

defendant actually committed the prior DUI offense

.

Commonwealth’s Brief at 24 (quoting Chichkin

, 232 A.2d at 970

- 71 )

(emphasis added)

. T he Commonwealth asserts that the Chichkin Court thus

recognized the availability of a procedure by which the Commonwealth could

offer proof of the prior offense

. Commonwealth’s Brief at 23

- 24. According

to t he Commonwealth , t he trial court erred by prematurely quashing Stewart ’ s

instant charges

, as second

- offense DUIs, because it depriv ed the

Commonwealth of the opportunity to prove the prior offense s

. Id

. at 36.

As this case involves a question of law, our “ standard of review is de

novo and our scope of review is plenary. ” Commonwealth v. Diamond , 945

A.2d 252, 256 (Pa. Super. 2008).

Upon review, we cannot agree with the Commonwealth’s interpretation

of Chichkin

. I n Chichkin

, a panel of this Court was asked to determine “ the

constitutionality of the provision of the mandatory minimum sentencing

statute for [DUI], 75 Pa.C.S.[A.] § 3806, which treats a prior acceptance ofJ

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[ARD] in a DUI case as a prior conviction for sentencing enhancement

purposes.” Chichkin , 232 A.3d at 961. In arguing that their sentences were

unconstitutional , t he Chichkin defendants/ appellants relied upon the United

States Supreme Court’s holding in Alleyne v. United States , 570 U.S. 99

(2013). 6 Chichkin , 232 A.3d at 964. Applying Alleyene , the Chichkin Court

concluded the following:

[T] he question presented in the present appeals is whether [the

a] ppellants ’ prior acceptances of ARD constitute an unproven

“ fact, ” which must be submitted to a jury, or a prior conviction,

which may be determined b y the court at sentencing.

... .

[B] ecause Appellants ’ prior acceptances of ARD do not constitute

convictions “ cloaked in all the constitutional safeguards, ” we

conclude they are a “ fact ” that, pursuant

to Alleyne

, Apprendi

, [ 7 ] and their progeny, must be presented

to the fact finder and determined beyond a reasonable doubt

before a trial court may impose a mandatory minimum sentence

under Section 3804. Accordingly, that portion of 75 Pa.C.S. [A.]

§ 3806(a), which statutorily equates a prior acceptance of A RD to

a prior conviction for purposes of subjecting a defendant to a

mandatory minimum sentence under Section 3804, is

unconstitutional

....

_________________ __________ ______ ____ _______

6 In Alleyne , the United States Supreme Court had held that “ [a]ny fact that,

by law, increases the penalty for a crime is an ‘ element ’ that must be

submitted to the jury and found beyond a reasonable doubt. ” Alleyne , 570

U.S. at 103.

7 See Apprendi v. New Jersey , 530 U.S. 466, 483 n.10 (2000) ( recognizing

that “[t] 

### he judge ’ s role in sentencing is constrained at its outer limits by the

facts alleged in the indictment and found by the jury. Put simply, facts that

expose a defendant to a punishment greater than that otherwise legally

prescribed were by definition ‘ elements ’ of a separate legal offense. ”)

.J

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-

Chichkin

, 232 A.3d at 968 ( two footnotes omitted ; one footnote added ). I n

a footnote, the Chichkin C ourt explained that “[n]owhere during the guilty

plea hearing did the Commonwealth prove, or did [ appellant ] Roche concede,

that she committed the prior DUI offense. Accordingly, her enhanced

sentence violates Alleyne and due process concerns.” Id. at 971 n.14. Thus,

the Chichkin Court reviewed only the constitutionality of the mandatory

minimum sentencing statute, as applied to th ose defendants. It did not

consider or approve an alternative procedure by which to establish a DUI

offense that under lies a prior acceptance of ARD.

Notwithstanding

, we acknowledge the following statement by the

Chichkin Court: “ [I] f the Commonwealth seeks to enhance a defendant ’ s

DUI sentence based upon that defendant's prior acceptance of ARD, it must

prove, beyond a reasonable doubt, that the defendant actually

committed the prior DUI offense. Any lesser standard would violate due

process concerns. ” Id. at 970

- 71 ( emphasis ad ded, footnote omitted).

However, because t he Chichkin Court was not asked to determine whether

a ny procedure c ould satisfy due process concerns

, the ChichkinJ

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-

Court’s s tatement in this regard constituted dicta , and is not precedential

. 8

See Castellani v. Scranton Times, L.P. , 124 A.3d 1229, 1243 n.11 ( Pa.

2015) ( defining “ dicta ” as an opinion by a court “ on a question that is not

essential to the decision [,]” and recognizing that dicta “ has no precedential

value.”) ( citation omitted ) )

.

In the instant case, o ur review of the record of the guilty plea hearing

discloses that the following inquiry took place:

THE COURT: Have you had an opportunity to read over the

charges and do you understand that you are charged as follows?

At Action No. 945 of 2019, March 11, 2019[,] at 1240 King

Street, South Lebanon Township, Count I is Driving under the

Influence of Alcohol, blood alcohol content of .30[.]

Count II, Driving Under the Influence of Alcohol

— that first

one was a second offense.

Cou nt II[,] Driving Under the Influence of Alcohol, incapable

of safe driving.

Two summaries, Driving While Operating Privilege is

Suspended or Revoked, and Careless [D]riving.

_________________ __________ ______ ____ _______

8 Moreover, the Chichkin Court could not judicially craft a new procedure that

the legislature did not enact. See Commonwealth v. Wolfe

, 140 A.3d 651,

662

- 63 (Pa. 2016) (holding that a mandatory minimum sentencing statute

that requires judicial fact

- finding at sentencing is unconstitutional under

Alleyne

, and that the Court could not rewrite the statute to allow the a

mandatory minimum se ntence based on a jury finding); Commonwealth v.

Hopkins , 117 A.3d 247, 262 (Pa. 2015) (holding that

, after the provisions of

a mandatory minimum sentencing statute became unconstitutional pursuant

to Alleyne

, our Supreme Court could not “ judicially usurp the legislative

function and rewrite [the statute] or create a substantive offense which the

General Assembly clearly did not desire. ” ).J

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- Do you understand that?

[] STEWART: Yes.

N.T., 10/8/19, at 5. After acknowledging that Stewart’s initials were on the

written colloquy form

, the trial court inquired as follows:

THE COURT:

... [K]nowing all of the things that we discussed, do

you still wish to enter a plea of guilty to the charg es as may be

amended by your guilty plea colloquy?

[] STEWART: Yes.

Id. at 6. Thus, the record reflects no express admission by Stewart that he

had committed a prior DUI offense. 9

Because the Commonwealth’s claim lack s merit, we affirm the Order of

the trial court.

Order affirmed. Superior Court jurisdiction relinquished.

_________________ __________ ______ ____ _______

9 C ontrary to the Commonwealth ’ s assertion, the trial court did not “ reward ”

Stewart for failing to withdraw h is guilty plea. See Commonwealth ’ s Brief at

24. Under the negotiated plea, Stewart was to plead guilty to all charges, in

exchange for a sentence of 90 days in jail and compliance with the results of

a drug and alcohol evaluation. See N.T. (Guilty Plea), 10/8/19, at 4. The ?

However, as discussed above, Stewart could not constitutionally be sentenced

to the DUI offenses as second offenses, based upon his prior acceptance of

ARD. See Chichkin

, 232 A.3d at 968. The trial court ’ s Order allowed Stewart

to plead guilty to all charges as first offenses, as required by Chichkin

. Thus,

the trial court ’ s Order did not constitute a “ reward ” to Stewart, but was the

constitutionally

- mandated result.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11 /1 9 /2021